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Weimar: A Jurisprudence of Crisis

Arthur J. Jacobson
Bernhard Schlink
TRANSLATED BY Belinda Cooper
Peter C. Caldwell
Stephen Cloyd
David Dyzenhaus
Stephan Hemetsberger
Arthur J. Jacobson
Bernhard Schlink
Copyright Date: 2000
Edition: 1
Pages: 419
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  • Book Info
    Book Description:

    This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms of legitimation to the rule of law. Only two of these authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries on their works have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors place the Weimar debate in the context of the history and politics of the Weimar Republic and the struggle for constitutionalism in Germany. This critical scrutiny of the Weimar jurisprudence of crisis offers an invaluable overview of the perils and promise of constitutional development in states that lack an entrenched tradition of constitutionalism.

    eISBN: 978-0-520-92968-5
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
    (pp. xi-xii)
    (pp. xiii-xiv)
  5. INTRODUCTION Constitutional Crisis: The German and the American Experience
    (pp. 1-40)
    Arthur J. Jacobson and Bernhard Schlink

    German legal theory in the Weimar period focused on what in Germany is known as the “law of the state” [Staatsrecht]. Though Weimar had a rich private law culture, the distinctive contribution of its legal theorists was to the law of the state. For the law of the state was in crisis in Weimar. It was in crisis because the state was in crisis for all but a brief period from the inception of the Weimar Republic in 1919 until its demise in 1933.

    That a crisis of the state should result in a crisis of the law framing and...

  6. PROLOGUE The Shattering of Methods in Late Wilhelmine Germany
    (pp. 41-66)
    Stefan Korioth, Max Weber, Georg Jellinek, Hans Kelsen and Carl Schmitt

    The Weimar debate on the tasks, aims, and methods of the theory of the law of the state spans a discrete period in the development of public law in Germany. However, it would be simplistic to seek in Weimar alone the factors that triggered this debate; the Weimar discussion took up issues and provided answers to questions that were of longer standing. Just as the problems of the Weimar state were rooted in certain developments in the Empire, the Weimar debate had its background in the latter years of the Empire—between 1900 and 1918. Much of what developed into...

  7. ONE Hans Kelsen
    (pp. 67-109)
    Clemens Jabloner and Hans Kelsen

    Hans Kelsen was born on 11 October 1881 into amodest bourgeois family in Prague. The family soon moved to Vienna, where Kelsen passed hisGymnasiumexams in 1900. The economist Ludwig von Mises was among his classmates and friends. Kelsen studied law and earned a doctorate in 1906 with a quite unusual work, “Dante Alighieri’s Theory of the State” [Die Staatslehre des Dante Alighieri]. In 1908, Kelsen had the opportunity to study for a time in Heidelberg with Georg Jellinek, at the time the leading authority on the general theory of the state. In 1911, Kelsen published hisHabilitationsschrift, titled...

  8. TWO Hugo Preuss
    (pp. 110-127)
    Christoph Schoenberger and Hugo Preuss

    The Weimar Constitution had no more passionate defender than the person who drafted it. No German law professor bound his name so unreservedly to the Weimar Republic as Hugo Preuss.

    On 15 November 1918, six days after the fall of the monarchy, Friedrich Ebert, the Social Democratic chairman of the Council of People’s Deputies and later president, appointed Preuss to a high post in the government:Staatssekretär des Inneren. His main responsibility was to draft a democratic constitution. Preuss, a bourgeois left-liberal, was at the time the most left-leaning scholar of the law of the state in Germany—Social Democratic...

  9. THREE Gerhard Anschütz
    (pp. 128-150)
    Walter Pauly and Gerhard Anschütz

    Gerhard Anschütz did not owe his standing in the state law theory of the Weimar period to conceptions of state and constitutional theory, as did Hermann Heller, Rudolf Smend, and Carl Schmitt, nor to a position on state law grounded in legal theory, as did Hans Kelsen; his prominence was due instead to doctrinal works on existing public law. He succeeded in writing the classic commentary on the Weimar Constitution, one of the few works that went to fourteen editions in the Weimar Republic, and with his temporary colleague on the Heidelberg faculty, Richard Thoma, edited the two-volumeHandbook of...

  10. FOUR Richard Thoma
    (pp. 151-170)
    Peter C. Caldwell and Richard Thoma

    Of the leading representatives of the statutory positivist approach to public law in the Weimar Republic, Richard Thoma produced the most coherent political theory of the Weimar constitutional system. He developed this theory in numerous essays and expositions of legal problems, in journals, in Festschriften, and in his many contributions to theHandbook of the German Law of the State[Handbuch des deutschen Staatsrechts], edited by him and Gerhard Anschütz in 1930 and 1932. Thoma provided a political and legal account of parliamentary democracy expounded from a left-liberal political and a neo-Kantian philosophical position. Both positions owed much to the...

  11. FIVE Heinrich Triepel
    (pp. 171-188)
    Ralf Poscher and Heinrich Triepel

    Heinrich Triepel’s significance for the law of the state of the Weimar Republic was the result not only of his scholarly undertakings but also of his practical efforts.

    Born on 12 February 1868 in Leipzig, Triepel completed his studies in Freiburg and Leipzig and, with the support of his teacher, Karl Binding, progressed rapidly through the early stages of his academic career. In the winter semester of 1900–01, he succeeded Gerhard Anschütz in Tübingen as professor of the general and German law of the state, international law, and the theory of the state. After appointment at Kiel in 1908,...

  12. SIX Erich Kaufmann
    (pp. 189-206)
    Stephen Cloyd and Erich Kaufmann

    Erich Kaufmann (1880–1972) was a critical influence in reasserting the importance of history and sociological ideas in legal and state law scholarship. His 1921Critique of the Neo-Kantian Philosophy of Law[Kritik der neukantischen Rechtsphilosophie] offered a penetrating and influential critique of the foundations and reasoning of the then-dominant school of legal positivism. For this, he is considered one of the founders of a new “idealist” [geisteswissenschaftliche] movement in Weimar legal scholarship, a movement that brought broader cultural and sociological perspectives to state law theory. While he never produced a comprehensive theoretical synthesis, his individual contributions taken together evolved...

  13. SEVEN Rudolf Smend
    (pp. 207-248)
    Stefan Korioth and Rudolf Smend

    Rudolf Smend (15 January 1882–5 July 1975) was born into a family of lawyers and theologians. His scholarly work, though of comparatively limited volume, was crucial to the development in Germany in this century of the theories of the state, broadly conceived, and of the law of the state, conceived as a matter of doctrine. The main themes of Smend’s work were legal and constitutional history, state and constitutional theory, and finally, especially after 1945, Protestant church law and the law of church and state. Smend focused on the fundamental concepts of state and constitutional theory; he was less...

  14. EIGHT Hermann Heller
    (pp. 249-279)
    David Dyzenhaus and Hermann Heller

    Hermann Heller (17 July 1891–4 November 1933) came from a Jewish family in the Austro-Hungarian Empire. He interrupted his studies in law by volunteering for service in the Austrian army during the First World War. His experiences as a front-line fighter left him with a heart condition, which contributed to his death at the age of 42. But his poor health did not dampen his deeply combative spirit—a spirit that he put at the service of German social democracy. In March 1920, together with Gustav Radbruch (who had successfully sponsored Heller’sHabilitationsschriftat Kiel), he participated in the...

  15. NINE Carl Schmitt
    (pp. 280-312)
    Volker Neumann and Carl Schmitt

    Carl Schmitt was born on 11 July 1888 in Plettenberg. After studying law and receiving his doctorate, Schmitt wrote hisHabilitationsschriftat the University of Strasbourg in 1916 on political philosophy (Der Wert des Staates und die Bedeutung des Einzelnen[The Value of the State and the Significance of the Individual]). Found unfit for the military because of his health, he served instead in the military administration in Munich until 1919. His friendship with expressionist writers and Catholic intellectuals dates from those years; under their influence, he tried his hand as a writer and cultural critic.¹ His first positions as...

  16. EPILOGUE The Decline of Theory
    (pp. 313-334)
    Reinhard Mehring, Ernst Forsthoff, Reinhard Höhn, Carl Schmitt, Theodor Maunz and Ernst Rudolf Huber

    Under National Socialism, the theory of the state and its law generally languished. This is evident not only among those scholars who largely clung to their pre-1933 methods and positions and attempted to stay out of politics and matters of state, or those National Socialist authors in the narrower ideological sense who sought a genuinely racist, theoretically unassuming new approach to the theory of the state and its law.¹ Above all, it is evident in the state law scholars directly involved with National Socialism who continued working on the problems and theoretical efforts of the Weimar period. They—and thus...

  17. NOTES
    (pp. 335-390)
    (pp. 391-392)
    (pp. 393-394)
  20. INDEX
    (pp. 395-405)